The powers of government to legislate, adjudicate, or implement laws are shared among the arms of government—Parliament, the Judiciary, and the Executive. These powers can be exclusively exercised by one arm of government or jointly with the others. Since 2019, the Parliament of Ghana has established an internal process for members of parliament to introduce bills (members’ bills) for legislation exclusive of the executive. However, this practice has raised concerns about its constitutionality, particularly with respect to Article 108(a)ii & iii of the 1992 Constitution, which imposes restrictions on Parliament not to deal with a bill that imposes a charge on the consolidated fund or any other public fund. This article aims to provide a constitutional interpretation of Article 108(a)ii & iii and examine how it coexists with the power of parliament to legislate using members’ bills.
In 2023, Xavier Sosu, a member of Parliament for Madina Constituency, introduced two bills seeking to abolish the death penalty by amending certain acts. These bills went through the necessary legislative procedures set out under Article 106 and were awaiting the President’s assent. However, the President refused to assent to the bills, citing their alleged unconstitutionality under Article 108(a)ii & iii. This has raised questions about the proper interpretation of Article 108, which will be addressed in the next part of this article.
The Supreme Court of Ghana has the final authority to interpret the 1992 Constitution. When interpreting the Constitution, judges use different styles, such as the purposive approach, intentionalism, and originalism. While the Supreme Court of Ghana has indicated a preference for the modern purposive approach, this article will focus on originalism as the interpretive style for analyzing Article 108(a)ii & iii.
Modern Purposivism, a style of adjudication that emphasizes the spirit or purpose of the constitution, may have flaws in its application. It suggests that the constitution has subjective and objective purposes, and the text should be interpreted to favor these purposes. However, the author argues that Modern Purposivism fails to align with the authority of the court and the role of the judiciary in the law-making process. Therefore, originalism may provide a more suitable approach for interpreting Article 108(a)ii & iii.